Les Green on law, philosophy, and some other passions

What ‘Brexit’ Really Means–Explained

My part-time colleague, Bo Rothstein, argues for a second referendum on the United Kingdom’s membership in the European Union–if and when the government comes up with ‘a deal’.

Fair enough. But is his second referendum supposed to be able to reverse the decision of the first one? Strangely, Rothstein doesn’t tell us. In light of his examples of referendums of which he disapproves, it is natural to think that he means not merely a second referendum on an independent issue (e.g. the UK’s membership of the European Economic Area–yes or no?) but a second referendum capable of undoing the first, that is, of leading to the UK remaining in the EU–the very option that was so clearly rejected in June. No referendum result (or election result, or judicial decision) has absolute authority. But does this one really have zero authority? Is it liable to be annulled on the ground that it was wrongly settled?

I am not surprised that Rothstein is coy about all this, for offering any definite view would require at least a sketch of the conditions under which a government should comply with the result of a (legally) advisory plebiscite. He gives us none. Rothstein does not notice, let alone refute, Richard Wollheim’s old but important resolution of the so-called ‘paradox of voting‘, namely, the fact that one can consistently think that one ought to support X against Y, yet also think that, if the majority supports Y against X, then one should support that. (Within limits.) Wollheim said there is a difference between our ‘direct’ and our ‘oblique’ policies, and that it is reasonable to have different policies about what we should ‘directly’ favour (were it up to us alone) and what we should ‘obliquely’ favour when called on to consider which policies should settle differences in what people ‘directly’ favour. So it does not follow from the fact that there was ample reason for me to vote Remain that, after a clear majority voted Leave, I should now insist on discounting their advice, relying instead on the grounds that justified my own initial vote. The actual, positive, fact of a majority vote matters, and before we decide to ignore it, we need a better reason than that the majority was wrong to vote that way.

Wollheim’s labels never caught on, but his idea did, and it was put to work by writers like HLA Hart, John Rawls, Joseph Raz, John Finnis, Jeremy Waldron, me, and lots of others. Nowadays we talk about the authority of ‘content-independent’ reasons, or of procedures. I’m not sure that ‘content-independent’ is any catchier than ‘oblique’, but it is the thing we need to consider when we weigh the moral authority of a referendum result, or an election result, or a court decision. We don’t hear about this from Rothstein, who never tells us when he thinks it is right (if ever?) to give weight to content-independent considerations. Of course, in a short journalistic piece one doesn’t expect a detailed argument. But not even a hint? Not a gesture? The silence suggests that he thinks positive facts have no authority at all to set against what is (in ‘truth’) right and proper.

Like most sensible people, he sees that the referendum result is a disaster for the UK–especially for those of us who teach in its universities; but for many others as well, including many who were duped into voting Leave. But a second referendum? What about best three out of five? And why not the same for general elections: the law of large numbers may help iron out the wrinkles caused by deliberate deception, voter ignorance, blindness to expertise, and so on. No MP should be elected without winning, say, 3 out of 5 elections. Or 5 of 7. There is an internet; it could be done. But we will need to settle on the number of elections (or referendums) that need to be won in order to produce a settlement. People will disagree about that, too. Should we hold a referendum on that question? Or ask the philosophers to decide?

Rothstein also says ‘The slogan “Brexit means Brexit” is … meaningless because no one knows what a Brexit alternative will look like.’ That is just false. I agree that we do not know what the feasible alternatives will be. I know that Theresa May’s ‘Brexit means Brexit’ was a silly slogan to buy peace among warring factions of her Conservative Party. But none of that comes close to showing that ‘Brexit means Brexit’ is meaningless. For starters, everything is what it is and not another thing, so the sentence, if uninformative, is meaningful. Taken literally, it is also (trivially) true. Of course, everyone also knows that it was not intended literally. It was intended to tell us not to get our hopes up that Brexit will prove to be something other than what it said on the tin. And what did it say on the tin? Since so many now claim to be mystified by that, I am going to tell you, for I know what ‘Brexit’ means.

‘Brexit’ means a BRitish EXIT from the European Union. And that means that those who favoured Brexit wanted the United Kingdom to cease being a member state of the EU. May’s slogan assures her colleagues that that will eventually happen. (‘Eventually’ is a very big problem: I may come back to that another time.)

Now, member-statehood in the EU is fairly crisp, well-defined concept. There are no hard cases of EU membership; it is even pretty easy to find out which states are in and which ones are out. Admittedly, Leave voters may not have known what they wanted instead of EU membership. But that is a different question, and it was not, as far as I recall, on the ballot paper. What’s more, there is nothing suspect about not wanting X while having no idea of what one would want if not X. People can rationally leave destructive marriages or jobs without settling what they might do next or instead. I think that those who voted Leave were tragically and terribly mistaken. I even think that many of those Leavers who were literate were culpably mistaken, as they refused to bear what John Rawls called ‘burdens of judgment.’ They negligently failed to inform themselves about highly pertinent, non-controversial, matters of fact; they refused to confront evidence that ran contrary to their prejudices. Be that as it may, to suggest that neither Leave voters nor anyone else knows what Brexit means is plain dishonest. For a serious academic to repeat that tired, journalistic lie is close to professional malpractice.

Finally, Rothstein–like most other commentators–says nothing at all about one real, politically serious, ambiguity in the referendum result. It isn’t helpful to talk about what ‘Britain’ decided, unless that is a casual way of talking about what the member state, the United Kingdom, decided. That is the relevant entity as far as the referendum, and the EU treaties, are concerned. And don’t say that ‘Britain means the United Kingdom’, as that is worse than ‘Brexit means Brexit’, inasmuch as the former is false and the latter is at least true. Most of the Northern Irish voted Remain, as did most Scots, whose relation to ‘Britishness’ is more complex than the English imagine. The referendum decided that the United Kingdom should leave the European Union. So that means that all of Great Britain and Northern Ireland will probably be given what only England and Wales voted for. About that, there is a reasonable complaint to be made. Admittedly, in the eyes of most English lawyers, Scotland’s and Northern Ireland’s rejection of Brexit is a detail of no constitutional significance, or no more constitutional significance than London’s. But the opinions of English lawyers are not as important to Scottish or Irish politics as the English suppose them to be.

As for Brexit, the Scots and Irish, like the English, understood perfectly well what was being asked in the referendum. They knew that ‘Brexit means Brexit.‘ That is why they opposed it.

3 thoughts on “What ‘Brexit’ Really Means–Explained”

As a Scottish voter, I would like to quibble about your final ‘flourish’. I and, I have good reasons to believe, a very large percentage of my fellow SNP members and voters, voted not on the meaning of ‘Brexit’ – the real journalistic cuckoo in this mess of a constitutional nest – but on the proposition that we desired to “Remain” in the European Union. Your entire argument appears to hang on the clearly shoogly peg of the EU Referendum being about attitudes to the journalese coinage ‘Brexit’. For Scottish “Remain” voters it was not. Indeed, many of our votes for “YES” in the Scottish Referendum had also been votes to “Remain” in the EU – for what has happened now, was very widely feared then.

The ridiculous nature of the proffered ‘choice’ – a matter with such intense and complex ranges of real-world effects and imponderables on one side that they could not be reduced to a simple Yes/No – makes the outcome more like a small margin in favour of a chaos of government indecision on the one hand, opposed to the status quo on the other. The empty journalese/politico-speak “Brexit means Brexit” is, I agree, not “meaningless” – but not on the over-simplistic basis which you advance. It is clearly intended to mean many different things to many different and often bitterly opposed people. It is a slogan intended to obscure meaning while conveying useful hopes or stimulate useful fears. It is beyond logical defence.

The EU Referendum vote has no mandatory legal power attached to it. The margin in the UK as a whole was very small – even in England and Wales it was a only 6% – and the contrary margin in Scotland was 24%. Even the proposition that the vote mandated a UK government withdrawing the UK from the EU is a stretch in terms of democratic legitimacy which looks wafer thin. The UK’s member nations were divided 2/2; no capital voted in its favour and no major city. The government which is prating “Brexit means Brexit” has no democratic legitimacy in Scotland, is led by a Prime Minister who has not even been elected by her own party and relentlessly refuses to answer the simplest basic questions as to what the “Leave” alternative is that it is pursuing. Furthermore, the contention – for that is all that it is – that the vital ‘triggering’ of Article 50 can be done by exercise of the Royal Prerogative is legally untested and clearly not only open to legal dispute but also looks ridiculous in the context of there having to be an approving vote by the European Parliament before any “leave” terms can be agreed/accepted by the EU.

In the light of all these facts – and without having to pray in aid any of the manifest dishonesties of the “Leave”, now handily re-branded ‘Brexit’, campaign – Bo Rothstein’s argument that there could be a new, and possibly decision changing, referendum seems more than reasonable. Certainly it is more important than chiding him for the naive ‘flourish’ – that “Brexit means Brexit” is meaningless. It seems more significant that the phrase is deliberately duplicitous and the action democratically suspect or worse.

Very helpful: thanks. I have more sympathy for the core of your case–the thinness of the majority, and the split among the nations of the U.K.–than I do for Rothstein’s case, which has all the defects I mentioned, and as well as others not here relevant.

My own point is that the journo-speak ‘“Brexit means Brexit” is meaningless‘ is false, unlike the journo-speak “Brexit means Brexit”, which is at least true. There is also, I think, a kind of mendacity in the former. It is used to suggest, falsely, that Leave voters did not know that they were advising about. They did–the question had none of the defects of the Quebec referendum question. True, those who agree on leaving may have disagreed on EEA, WTO, CETA, or a made-in-little-England bespoke deal. But that was not the question in the June referendum. The legitimacy of a Leave vote was no less suspect than the legitimacy of a Yes vote in Scotland. Those who vote out do not need to be told, or to have, a clear alternate path or destination in mind to before we should respect their collective voice. They know where they do *not* want to be. I would take a different view if there were a serious issue in their minds about whether or not voting Leave was a way of telling the government to leave the EU. But there wasn’t.

[…] Union delivered a clear, if narrow, result: the country should leave. Much still remains open, but as far as that issue is concerned, the matter is decided. I’m sure that British voters had no view about which mechanism would transfer their decision […]